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CASE NUMBER: 605454 - NYC: 252807
FINDINGS OF FACT AND DECISION
| Case Number: | 252807 |
|---|---|
| Student’s Name:[1] | [REDACTED] (“student”) |
| Date of Birth: | [REDACTED] |
| School District: | NYC # [REDACTED] |
| Hearing Requested by: | [REDACTED] (“Parent”) |
| Request Date/Date Complaint Filed: | 08/23/2023 |
| Date(s) of Hearing: | 10/26/2023 and 10/27/2023 |
| Actual Record Closed Date: | 11/06/2023 |
| Date of Decision: | 11/06/2023 |
| Date of Distribution if Different than Decision Date: | N/A |
| Hearing Officer: | Leah Martin, Esq. |
| Time Sensitive: | No |
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/26/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“Parent”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/27/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“Parent”), [REDACTED] (“22/23 Teacher”), [REDACTED] (“Clinical Services Director”), [REDACTED] (“23/24 Teacher”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on August 23, 2023. (Ex. A). [2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”) for the 2022-23 and 2023-24 school years. (Ex. A). Parent has unilaterally placed the student in a private school (“Private School”) and is seeking direct payment and reimbursement of tuition for both school years. (Id.). Parent is also seeking transportation and funding for independent educational evaluations (“IEEs”) for assistive technology (“AT”), occupational therapy (“OT”), and speech-language (“SL”) at providers of the Parent’s choosing. (Id.). I was appointed on August 24, 2023. On October 3, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the parties jointly advised that the funding for the neuropsychological IEE had been previously settled but that all other claims were still pending. (PHC Transcript). Parent Counsel indicated at that time that all 504 claims were subsumed under the IDEA. (Id.). Hearing dates were also set at the PHC. (Id. ). A virtual hearing was held on October 26 and 27, 2023. It was a closed hearing. Parent was present and represented by Parent Counsel. The DOE Representative was also present. At the DPH, the DOE entered ten exhibits into evidence (Ex. 2-11)[3] and presented no witnesses. (Tr. 21-22). Parent Counsel entered seventeen exhibits into evidence (Ex. A-Q) without objection. (Tr. 24-26). The DOE’s due process response (“DPR”) was added to the record as an IHO Exhibit (Ex. i). (Tr. 27). Parent presented testimony from four witnesses at the hearing: Parent, 22/23 Teacher,[4] Clinical Services Director,[5] and 23/24 Teacher.[6] DOE Representative waived her closing and Parent Counsel made oral closing arguments on the record (Tr. ). The record was closed on November 6, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq., and Section 504,[7] 29 U.S.C. §794(a). [8]
BACKGROUND
The student is currently in the fourth grade and classified as a student with a learning disability. (Ex. A-3, 6). The student has been diagnosed with Learning Disorders (“LD”) in Reading (severe), Writing (severe), and Math (mild), Attention Deficit Hyperactivity Disorder (“ADHD”) – predominantly inattentive type, and Developmental Coordination Disorder. (Ex. A-3; D-25). On June 3, 2022, the DOE convened a meeting of the committee on special education (“CSE”)[9] and developed an individualized education program (“IEP”) for the student for the 2022-23 school year. (Ex. A-6). The 6/3/22 IEP recommended an integrated co-teaching (“ICT”) class with related services of group counseling (2x30x4) and OT (1x30x1 and 1x30 in a group of two) on a 10-month basis. (Ex. A-6; 4-14-15). Parent did not receive a placement offer for the student for the 2022-23 school year. (Ex. A-8). On August 17, 2022, Parent sent the DOE a Ten-Day Notice, providing notice of their intent to enroll the student in the Private School and seek public funding (and transportation) unless an appropriate program was offered by the DOE prior to the start of the 2022-23 school year. (Ex. A-8-9; C). The student was placed at the Private School for the 2022-23 school year and Parent is seeking a combination of reimbursement and direct funding for tuition for that school year. (Ex. A-11). No CSE meeting was held, IEP developed, or placement offer made for the 2023-24 school year. (Ex. A-9-10). On August 21, 2023, Parent sent the DOE a Ten-Day Notice, providing notice of their intent to enroll the student at Private School and seek public funding (and transportation) unless an appropriate program was offered by the DOE prior to the start of the 2023-24 school year. (Ex. B). The student was placed at the Private School for the 2023-24 school year and Parent is seeking direct funding for tuition and the provision of transportation for that school year. (Ex. A-10-12).
ISSUES
There is no dispute here about the student’s eligibility for special education, or his disability classification. (Tr. 32). The DPC raises claims under 504. At the PHC, the parties were advised that Parents have the burden on all claims under 504. (PHC Transcript). Additionally, Parent Counsel was warned at the start of the hearing that any issues raised in the DPC but not argued in specifics at the hearing would be deemed abandoned. (Tr. 31). Notwithstanding, at hearing, no arguments were made with respect to 504. For these reasons, I find that the 504 claims have been abandoned. First, the DPC alleges that the DOE evaluation in the fall of 2021 was insufficient to address all areas of the student’s need and thus Parent is entitled to the requested IEEs. (Ex. A-2-3, 5; Tr. ). Second, the DPC alleges a denial of a FAPE for the 2022-23 school year based on: the aforementioned insufficient evaluation, the CSE’s failure to consider compensatory education for issues with remote learning caused during the pandemic and to consider or discuss the recommendations in the parent’s neuropsychological IEE, the IEP’s failure to adequately establish the student’s present levels of performance and needs, to address the student’s behavioral, activities of daily living, and social-emotional needs, to address the student’s depression, and to specifically require 1:1 and small group support, the CSE’s decision to increase rather than decrease the student’s class size despite a lack of progress in his previous program, and the DOE’s failure to provide adequate notice of the parent’s due process rights, the final program recommendations, and the recommended school placement. (Ex. A-5- 9). None of the allegations regarding the sufficiency of the IEP for the 2022-23 school year were argued at the hearing. The only statement regarding the IEP made by Parent Counsel at the hearing acknowledged that an IEP meeting was held but alleged in conclusory fashion that a FAPE was not offered subsequent to the meeting. (Tr. 34). I interpret that statement as a reference to the allegation that a school location was not offered to implement the IEP. Thus, in accordance with my directives at the hearing, all other claims alleged in the DPC regarding the 6/3/22 IEP are deemed abandoned. Third, Parent has alleged that the DOE failed to hold a CSE meeting, develop an IEP, or offer a school placement for the 2023-24 school year, which resulted in a denial of a FAPE. (Ex. A-9-10; Tr. 34; Tr. ). Finally, Parent alleges that the Private School is an appropriate unilateral placement for both school years and that the equities are in their favor. (Ex. A-10; Tr. 35-37; Tr. ). At hearing, the DOE did not concede a denial of a FAPE but declined to put on a case. (Tr. 31- 32). They did not specifically deny any of the allegations in the DPC. Although DOE Representative stated in her opening that she would ask that relief be denied “should the Parent fail to establish their [Prong 2] burden” (Tr. 33), she did not then argue in summation that Parent had in fact failed to meet their burden and did not ask that relief be denied. (Tr. ). In fact, the DOE declined to cross-examine any of the Parent’s witnesses and waived their closing arguments. (Tr. ). The DOE did not allege any equitable concerns that should weigh against the Parent. So, while all three prongs of the Burlington/Carter test remain at issue, the DOE has not put forth any specific arguments to dispute the Parent’s allegations or requested remedies.
FINDINGS OF FACT
The student received remote learning at the end of his kindergarten year, and hybrid instruction during his first-grade year (2020-2021). (Ex. A-4; 7-1). Although the DPC alleges that the student’s “special education needs were compounded by the implementation of inadequate remote learning instruction for his foundational skills” during the pandemic (Ex. A-4), there is no other evidence of this in the record. Parent has not specified what inadequacies there were in the remote instruction, nor are those school years currently at issue. Rather, it appears from the Parent’s allegations simply that the student’s literacy deficits were first noticed during the period of remote instruction. That could be because the kindergarten age corresponds to the beginning of literacy instruction, in general. There are no concrete allegations in the record establishing any ways in which remote learning exacerbated the student’s deficits. While the 11/5/21 IEP, the 2021 psychoeducational evaluation, and the Neuropsychological IEE mention that the student previously received remote and hybrid instruction, they do not note any alleged difficulty therewith or any Parent concerns over the student’s remote instruction. (Ex. 2-4, 8; 7; D-7, 14). No concerns over remote learning were noted in the 6/3/22 IEP either. (Ex. 4). In the fall of 2021, the DOE initially evaluated the student in preparation for a November 2021 IEP meeting. (Ex. A-5). According to the DPC and Parent’s testimony, that evaluation (“2021 Evaluation”) included only a social history interview, review of reports from the student’s teacher and related service provider, [10] and a psychoeducational evaluation (“2021 Psychoeducational”). (Ex. A-5; Tr. 62-64). [11] However, based on the record before me, it is clear that a classroom observation and OT evaluation were also included in the 2021 Evaluation. (Ex. 3-1; 8; 9; 10; i-2).[12] On March 30, 2022, Parent sent DOE a letter indicating that they disagreed with the 2021 Evaluation because although it indicated that the student “may have dyslexia and dysgraphia …it did not include formal diagnoses;” the letter stated that a more comprehensive evaluation was needed to “rule out [the student’s] related diagnoses, and further discuss said findings.” (Ex. A-6; I-1). In that letter, Parent requested a neuropsychological IEE. (Ex. A-6; I-1). On October 24, 2022, the independent neuropsychological evaluation (“Neuropsychological IEE”) was performed, and a report was issued on December 10, 2022. (Ex. A-6; D-1). [13] The record is silent as to when this evaluation report was provided to the DOE, or whether Parent requested the CSE to reconvene once it was provided. However, it is clear from the date of the report that it was not completed until after the June 3, 2022, CSE meeting, so it would not have been available for consideration at that time. The request for AT, OT, and SL IEEs appears to have been made for the first time in the DPC. (Ex. A-2-3). Parent testified that the student has not had a prior AT evaluation and could need AT because he has vision and handwriting issues that could be helped by technology. (Tr. 50-51). According to Parent, the student predominantly uses a voice typing program in class, and there may be other technology available to aid his reading and writing issues. (Tr. 50-51). Although there is no evidence in the record of a prior AT evaluation, access to a tablet for typing was included on both IEPs in evidence, and his need for AT was mentioned in the 2021 OT evaluation as well. (Ex. 2-10; 4-5, 12; 9-6-7). [14] OT has also been identified as an area of need for the student; it was recommended on his previous IEPs and he receives OT at Private School. (Ex. 2-9-10, 21; 4-14; 9-7). [15] However, here is no indication in the record that the student has previously received a SL evaluation, or that any previous SL concerns have been noted. Neither the IEPs or any of the 2021 evaluations in evidence mentioned any SL concerns, nor did the student’s physical examination from April 2021 recommend an evaluation for speech therapy. (Ex. 2; 4; 7; 11-4).[16] To the contrary, the student’s “oral language, oral expression, listening comprehension, receptive vocabulary and oral reading fluency are notably a strength falling withing the high average to extremely high average range.” (Ex. 7-11; see also Ex. D-19-20, 27; Tr. ). Although the student does receive speech at Private School (Tr. ), that is part of the general curriculum for all students and does not appear to be based on an assessment of this particular student’s need (Tr. ). The 2021 Psychoeducational noted that the student is “a multisensory learner and works best one on one or in small group.” (Ex. 7-1). It was noted that he is intelligent and prefers visual and hands-on tasks. (Ex. 7-3). His full-scale IQ is in the very high range. (Ex. 7-3). He was noted to struggle with distractibility and transitions, and to “benefit[] from constant redirection, prompts and preparation.” (Ex. 7-1). It was also noted that the student struggled to stay emotionally regulated in class and would become overwhelmed, leading to physical outbursts. (Ex. 7-1). His scores on tests of visual scanning, visual discrimination, short-term visual memory, visuomotor coordination, and concentration were significantly below expectations. (Ex. 7-5). His overall academic achievement score was in the average range, but with very disparate results depending on the category. (Ex. 7-5-9). He demonstrated relative weakness in pseudoword decoding (13th percentile), word reading (14th percentile), spelling (5th percentile), and alphabet writing fluency (5th percentile). (Ex. 7-5-8). Relative strengths were seen in oral reading fluency (99th percentile), listening comprehension (very high range), expressive vocabulary (98th percentile), and oral word fluency (95th percentile). (Ex. 7-5-9). The student was found to have an elevated risk for Dyslexia. (Ex. 7-7). His coping skills on the perceptual motor test were found to be in the low range (8th percentile). (Ex. 7-9). The 2021 Psychoeducational recommended mandated counseling and stated that the student “would benefit from direct instruction utilizing a multisensory approach, daily review of skills, preferential seating and 1:1 support whenever possible. He works well with modeling, reminders, prompts, structure, breaks and visual support” as well as “praise, encouragement and positive reinforcement.” (Ex. 7-11-12). The 6/3/22 IEP was based on consideration of the 2021 Psychoeducational, as well as reports from the student’s teacher, counselor, and SETSS provider. (Ex. 4-1-4). [17] There is no indication in the IEP or subsequent prior written notice (“PWN”) that any other evaluative material was considered in the IEP’s development. (Ex. 4; 5). According to the 6/3/22 IEP, at that time the student was performing at or above grade level in math, but below grade level in reading and writing. (Ex. 4-1, 19). His teachers reported that while he was still below grade level, he had “progressed four reading levels …(from level F to level J)” during the 2021-22 school year and could “read a level K if broken down into 2-day assessment.” (Ex. 4-3). Improvements were also noted in the student’s handwriting legibility and copying speed. (Ex. 4-5). Mental math was noted to be easy and fun for the student, but he was found to struggle with the writing task of showing his work. (Ex. 4-3). In the 6/3/22 IEP, the student’s SETSS provider reported that the student needed support to keep track of his place while reading passages and with writing. (Ex. 4-3). He was also noted to need extra time, prompts, and reinforcement as well as adapted paper for writing. (Ex. 4-3). The teacher further reported that he used a tablet for writing, needed 1:1 assistance, verbal and visual prompts, and extended time to write. (Ex. 4-3). According to the teacher, the student struggled “to express his thinking and what he knows in written form.” (Ex. 4-3). She went on to note that the student struggled to work independently and that the “act of writing is … consistently laborious.” (Ex. 4-3). The student was noted to know all letters, sounds, and diagraphs in isolation and was able to read “CVC words” words with welded sounds when focused and to “follow along when asked to write sounds in isolation.” (Ex. 4-3). It was also noted that he “needs to work on reading for meaning and saying to himself, ‘Does this word make sense?’” and to work on “segmentation, blending, substitution, [and] deletion to help him form his words.” (Ex. 4-3). Focus and stamina were additionally noted to be areas of need. (Ex. 4-3-4). The SETSS provider recommended moving the student to an ICT class “to make sure he has support in all academic areas where he can get small group time throughout the course of the day …[and] so he can have two people supporting his focus and on task prompting when needed.” (Ex. 4-4). Although the IEP and accompanying PWN list that other placements considered were general education (without services), general education with SETSS, and a 12:1 special class, in the adjoining paragraph explaining the reasons, there is no mention of the 12:1 special class, so it is unclear whether it was actually considered or discussed. (Ex. 4-20; 5-2). The IEP does not indicate that an ICT class with SETSS was considered. (Ex. 4-20; 5-2). [18] According to the student’s counseling report, he was still struggling with a low frustration tolerance, emotional dysregulation, and lack of flexibility. (Ex. 4-4). The student was noted to be good at transitions, getting along with peers with minimal conflicts, and openly sharing his thoughts and feelings. (Ex. 4-4). The student was noted to sometimes struggle attending to others when he is speaking and avoiding frustration during group play or in the classroom or larger unstructured settings. (Ex. 4-4). It was noted that the student had good friends in his class but needed to work on greater flexibility with peer interactions and with emotional regulation. (Ex. 4-4). Finally, the IEP noted that the student had some sensory issues, in that he could become upset if people were in his personal space and become fidgety and restless during class. (Ex. 4-4). However, according to the student’s teacher, those behaviors were thought to be a response to nonpreferred academic tasks rather than a true response to sensory input. (Ex. 4-4). A squishy fidget ball and a chewy necklace were found to be calming tools. (Ex. 4-4). No concerns were noted by the student’s teacher, SETSS provider, or parents concerning deficits in activities of daily living or depression. (Ex. 4-3-6). The 6/3/22 IEP recommended the following management needs: modified paper, a tablet/computer for typing, breakdown of activities into smaller parts, modified seating, use of fidgets and adaptive seating as needed, use of a timer during task completion, direct reading instruction with an evidence-based, multisensory approach, extended time for tasks and transitions as needed, small group instruction and individualized support when necessary, teacher check-ins, visual supports for organization and transitions, and “praise, encouragement and reinforcement to bolster self confidence and risk taking during academic tasks that are perceived to be challenging.” (Ex. 4-5-6). In terms of programming, the student was recommended for an ICT class 25 periods per week (10 for ELA, and 5 each for math, social studies, and science), with related services of counseling (2x30x4) and OT (1x30x1 and 1x30x2). (Ex. 4-14). According to the background information in the Neuropsychological IEE, [19] the student’s behavior improved in second grade when his vision issues were diagnosed. (Ex. D-2). According to the IEE’s teacher report, in October of 2022 the student was reading at an independent Fountas and Pinnell level H and an instructional level I (Ex. D-3), which is below where he was in June of 2022. His math performance was reported to be at or above grade level, with written language skills far below grade level and social emotional functioning below average. (Ex. D-4-5). Based on the results of October 2022 testing, at that time the student was decoding at a high first-grade level and his word attack and reading comprehension skills were at a low second-grade level. (Ex. D-18). His spelling skills were in the mid-kindergarten level. (Ex. D-19). In contrast, his oral comprehension was in the low seventh-grade level, and his math skills were more or less on grade level. (Ex. D-19). In terms of executive functioning, the student was found to have extremely low verbal cognitive flexibility, and an elevated attentional control index, but otherwise his overall executive functioning index was average, and Parent reported that the student was “able to control and maintain his behavior and mood as capably as others of the same age.” (Ex. D-22-23). On the behavior assessment scales for children (BASC-3), the only “at-risk” areas were attentional problems, ADHD probability, and activities of daily living (“ADL”). (Ex. D-23-25). However, it is unclear whether the ADL score was rated as “at-risk” in error. There are two completely contradictory claims about the student’s scores in the same paragraph; it alternatively states that the student scored in the 47th percentile and was “able to adequately perform simple daily tasks in a safe and efficient manner,” and a few sentences later it says that student’s ADL score was in the 5th percentile and he “has difficulty performing simple daily tasks in an efficient manner.” (Ex. D-25). Based on the context of the paragraph, it appears that both statements concern the results of the same BASC-3 subtest. (Ex. D-24-25). No specific ADL concerns are mentioned in the Neuropsychological IEE, so I believe that the claim about the student scoring in the 47th percentile for ADL is more likely to have been correct, which would have been in the average range (Ex. D-36). The evaluator recommended counseling, but no specific frequency or group size was indicated. (Ex. D-29). The Neuropsychological IEE concluded that “the only placement option that will address [the student’s] delays is a nonpublic school that has the resources to address the nature and extent of these difficulties. The school must also consistently and reliably provide counseling and other related services. In order for [the student] to begin to adequately develop his academic skills and obtain access to the educational curriculum, he requires a small classroom setting that provides intensive individualized attention and support throughout the day through a remedial approach to teaching, provided by special education teachers trained to work with children with emotional, attention and learning disabilities. It cannot be stressed enough that [the student] will NEVER make any meaningful progress in any other, but the setting described above.” (Ex. D-28). While I credit the evaluator’s opinion about what type of program would be beneficial for the student, as a state certified psychologist and Ph.D. [20] who evaluated the student (Ex. D-30), I give no weight to his conclusion that such a program is the only one that could be appropriate for the student or that the student could not be appropriately educated in a public-school program. I have no information about the evaluator’s familiarity with the continuum of programs and services available in the New York City public schools. Nor do I have any information about the evaluator’s background and experience. Parent chose not to provide the evaluator’s curriculum vitae (as requested during the PHC for any expert witnesses) and not to present them as a witness. Accordingly, I do not credit the assertions of the Neuropsychological IEE evaluator as to the necessity of a non-public school for the student. The evaluator opined that the Private School was appropriate for the student, based on information from their website. (Ex. D-28-29). Parent felt that although the student’s public-school teachers and providers did their best to help the student, she did not see the necessary results. (Tr. 43-44). According to Parent, the public-school teachers could not spend the time needed with the student to help him learn to read. (Tr. 45). Ultimately, the student became very depressed by the idea of going to school and Parent felt that she had to act. (Tr. 45-46). Parent found Private School through her own research, then met with the enrollment officer, principal, and a teacher remotely. (Tr. 47-49). Prior to his admission, the student spent a day at the school to see if it was a good fit. (Tr. 48; Tr. ). After that trial day, the student reported to Parent that the class was full of other students like him who were interested in the same things as him. (Tr. 48). On May 27, 2022, Parents signed an enrollment contract for the student’s attendance at Private School for the 2022-23 school year. (Ex. E). The contract obligates the parents [21] to pay the yearly tuition of $86,250 in installments, with the balance of payment due by September 1, 2023. (Ex. E-1-2, 16). A written addendum to the contract provides that the School will permit delayed payments during due process proceedings, but that if the DOE is not ordered to pay parents must pay the tuition balance within sixty days of the final decision. (Ex. E-18). The contract additionally states that the parents agree that they are legally obligated to pay the entire yearly tuition and fees unless the student accepts the district’s school placement prior to October 15, in which circumstance the parent may be entitled to a partial refund. (Ex. E-10-11). To date, parents have only paid $2,500 of the 2022-23 Private School tuition, and still owe the balance of $83,750. (Ex. F-1). The student had good attendance during the 2022-23 school year at Private School. (Ex. G-1). According to the program description for the 2023-24 school year,[22] Private School is a K-12 school for “twice exceptional” students with class sizes of 10-12 students. (Ex. J-1). It describes the program as “STEM- and STEAM-driven” but does not explain what that is. (Ex. J-1). The academics “are based on a cross-curricular approach combined with curated Common Core Standards.” (Ex. J-2). It is also unclear what this means. The Private School teachers differentiate curriculum to meet the students’ individual needs and students are encouraged to find areas of study about which they are passionate. (Ex. J-2). [23] An individual student profile and program is developed at the start of each year based on prior evaluations and educational records. (Tr. ). Individual goals are also developed for the student, which are modified as needed based on progress. (Ex. O-2-3; Tr. ). The student’s teachers and service providers communicate daily and have weekly case conferences to discuss his profile, goals, and strategies and to make any necessary changes based on the student’s progress and achievement. (Tr. ). The student’s fourth quarter schedule [24] for the 2022-23 school year included: homeroom, English language arts (“ELA”), math, applied logic, engineering, drama, science, group speech, “Foundations,” [25] group OT, social studies, physical education, “Creative Lab,” [26] “Kid Works,” [27] music, and “Closing Circle High Rock.”[28] (Ex. M-1). The student’s core classes (ELA, math, social studies, and science) had seven students and two co-teachers, both of whom were reading specialists. (Tr. ). The core classes were often taught in parallel, meaning the class would be broken into two smaller groups and each head teacher would teach different topics, based on the students’ needs. (Tr. ). The student’s math class used the Singapore Math curriculum. (Tr. ). During the 2022-23 school year at Private School, the student received related services of counseling, OT, speech, and reading remediation with an Orton- Gillingham-trained reading specialist. (Tr. ). The student received a number of accommodations for his learning, including a “TIDE” planner[29] to organize notes for writing, scribing support (in which the teachers would record the student’s verbal ideas), graphic organizers, manipulatives, timers, noise-cancelling headphones, frequent breaks, redirection, reminders, 1:1 teacher support, [30] step-by-step instructions, scaffolded tools, teacher models, visual aids, enlarged text, and movement breaks. (Ex. O-2-3; P-4, 6; Tr. ). Other accommodations provided include “20-20-20 vision breaks,”[31] a self-monitoring tool for the student to assess his own attention at the end of each day, visual cue cards for various daily tasks he must complete, weekly 1:1 time with a high school math teacher, different media options (including audio books), voice typing technology, breathing breaks, breaks in the “cozy corner,” and movement breaks. (Ex. P-2-3, 5; Tr. ).
During the 2022-23 school year, the student had weekly counseling (1x30x1) in addition to his group therapy class, Foundations. (Ex. P-1-3; Tr. ). In his counseling sessions, they worked on the student’s peer interactions (understanding his role in peer disagreements and building social skills), understanding his feelings and how they influence behavior, and learning to positively cope with emotions. (Ex. P-1). They used an approach that combined cognitive behavioral therapy and the zones of regulation. (Ex. P-1). According to the therapy team report in evidence, the student made progress articulating how his feelings and behavior were connected and slight[32] progress generalizing his regulation skills in school. (Ex. P-2). During the second semester of the 2022-23 school year, the student participated in a weekly group speech class to work on social communication. (Ex. P-4).[33] The student progressed in his ability to stop himself from blurting things out. (Ex. P-5). The student also received Orton-Gillingham based instruction with a reading specialist (2x30) to work on decoding, fluency, and spelling during the 2022- 23 Spring semester. (Ex. P-3). Additionally, the student received OT (2x30) individually or in a group of two to work on sensory processing, regulation, “incorporating movement and upper body and core strengthening into the school day,” fine and graphomotor development, and visual motor/visual perceptual development. (Ex. P-5). He also participated in a weekly group class during homeroom for handwriting and keyboarding practice. (Ex. P-5). The student was reported to make slow but steady progress in all areas of OT concern. (Ex. P-6). According to the student’s Spring 2023[34] progress report, at that time the student was receiving a grade [35] of 4 in applied logic, 3.5 in creative lab, 3.3 in drama, 2.0 in ELA, 4.0 in engineering, 3.0 in math (with classwork and effort rated at a 2, participation at a 3, and achievement at a 4), 4.0 in music, 3.0 in science, and 3.0 in social studies. (Ex. O-1). The student’s i-Ready math assessment scores were noted to improve from an overall third grade level at the beginning of the year to an overall fourth grade level at the end. (Ex. O-2). In physical education, notable improvement with dysregulation was noted. (Ex. O-2). However, according to 22/23 Teacher, the student showed no improvement with emotional regulation issues throughout the school year, and he had tantrums consistently throughout the year. (Tr. ). According to Parent, before attending Private School the student never read independently, but during the 2022-23 school year he began to read and interact with things in his environment for the first time. (Tr. 58-59). According to 22/23 Teacher, the student’s ability to sustain focus improved over the year; at the beginning of the year he was only able to work independently on a task for one to two minutes before becoming distracted, but by the end of the year that had increased to five to eight minutes. (Tr. ). According to 22/23 Teacher, at the beginning of the year the student was unable to write much more than his name, but by the end of the year could independently write one to two sentences. (Tr. ). 22/23 Teacher testified that the student made steady growth in reading but did not give any specific examples of skills in which he had progressed. (Tr. ). While she testified that Private School conducts Fountas and Pinnell assessments at the beginning, middle, and end of each school year, she could not recall the student’s scores (Tr. ) and those assessments are not in evidence. Similarly, Private School uses their own writing assessments (Tr. ), but those results are not in evidence. Progress reports were issued by Private School twice yearly, but only the later ones for the 2022-23 school year are in evidence. (Tr. ; O; P). On March 20, 2023, parents signed an enrollment contract for the student’s attendance at Private School for the 2023-24 school year. (Ex. N). The contract obligates the parents [36] to pay the yearly tuition of $92,250 in installments, with the balance of payment due by June 1, 2024. (Ex. N-1-2, 16). A written addendum to the contract provides that the School will permit delayed payments during due process proceedings, but that if the DOE is not ordered to pay parents must pay the tuition balance within sixty days of the final decision. (Ex. N-20). The contract additionally states that the parents agree that they are legally obligated to pay the entire yearly tuition and fees unless the student accepts the district’s school placement prior to October 15, in which circumstance the parent may be entitled to a partial refund. (Ex. N-11). To date, parents have not paid any of the 2023-24 Private School tuition, and still owe the balance of $92,250. (Ex. Q-1). [37] As of October 2, the student has had perfect attendance during the 2023-24 school year at Private School. (Ex. H-1). The student’s schedule for the 2023-24 Fall semester [38] includes “Idlewild Advisory,” [39] ELA, math, [40] OT, physical education, music, library, “Foundations Group,”[41] “Creative Lab,” [42] drama, science, social studies, “KidWorks,” [43] “LS Therapy Group,”[44] “Choice Time,” [45] and “LS Closing Circle.” [46] The student’s class has 12 students and two teachers and is often split into two small groups[47] based on the students’ needs. (Tr. ). The student’s teachers collaborate with his service providers to create social and academic goals and then monitor and collect data on progress. (Tr. ). The goals are then revised, as needed. (Tr. ). The service providers also help the teachers incorporate strategies from therapy sessions into the academic periods. (Tr. ). Accommodations are provided, such as redirection, reminders, visuals for multi-step directions, breaks, and strategies for executive functioning (such as a predictable routine, visual schedules, and a visible agenda for every period). (Tr. ). During the 2023-24 school year so far, the student has received related services of counseling, speech, OT, and specialized reading remediation. (Tr. ). His specialized reading sessions are twice per week individually. (Tr. ). His OT sessions are once per week individually, once in a small group, and once in the whole class setting. (Tr. ). His speech is once weekly in a group. (Tr. ). His counseling is once per week individually. (Tr. ). His counseling goals include strategies to deal with frustration and feeling overwhelmed, and tools to build his self-advocacy skills. (Tr. ). His OT sessions focused on his sensory needs and fine motor stamina. (Tr. ). The student’s counselor works with his teachers to ensure that the strategies are carried over into the classroom. (Tr. ). The speech class works on strategies for expressing feelings, advocacy, social language, understanding your role in a group, taking turns, and being cognitively flexible. (Tr. ). [48] The student’s speech and OT providers are licensed in their fields. (Tr. ). The student’s teachers collaborate with his service providers and parents to create goals and solve problems. (Tr. ). According to 23/24 Teacher, the student is still reading below grade level; at the beginning of the 2023-24 school year, he tested at a level J (which is equivalent to a second-grade level) on the Literably assessment, which is similar to Fountas and Pinnell. (Tr. ). Although the student reads below grade level, he is exposed to grade-level materials using different methods (such as read aloud or audiobooks). (Tr. ). Based on the beginning of the year i-Ready math assessment, the student is testing one grade above his level, but 23/24 Teacher believes he knows a lot more than that. (Tr. ). According to Parent, the student’s self-regulation skills have “improved … 1,000 fold” since he started at Private School. (Tr. 54). She credits this improvement to his work with the Private School counselor. (Tr. 54-55). Parent also says that during the 2023-24 school year at Private School the student has begun to read independently at home for the first time. (Tr. 59-60). According to 23/24 Teacher, the student has improved his ability to follow the “class rhythm” independently. (Tr. ). He has also progressed in his voice typing skills, and his ability to independently organize his thoughts for writing. (Tr. ).
LEGAL FRAMEWORK
IDEA
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. Id. The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). Failure to timely offer the student a placement (a school that would implement the IEP) constitutes a procedural violation that significantly impedes the parent’s ability to participate in the decision-making process regarding the provision of a FAPE. V.A. v. City of New York, No. 20-CV- 0989(EK)(RML), 2022 U.S. Dist. LEXIS 84556, *28 (E.D.N.Y. 5/10/22); S.Y. v. N.Y.C. Dep’t of Educ., 210 F. Supp. 3d 556, 574-75 (S.D.N.Y. 2016); FB v. N.Y. City Dep’t of Educ., 132 F. Supp. 3d 522, 541- 43 (S.D.N.Y. 2015); C.U. v. N.Y.C. Dep’t of Educ., 23 F. Supp. 3d 210, 227 (S.D.N.Y. 2014). Under New York law, the City may show proper mailing of the school location letter in two ways: (1) “through evidence of actual mailing (e.g., an affidavit of mailing or service);” or (2) “by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature.” V.A., 2022 U.S. Dist. LEXIS 84556 at *26-27. The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the district agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). Additionally, a district must honor a parent’s request for re-evaluation if one has not occurred within the previous 12 months. M.S. v. Lake Elsinore Unified School District, 69 IDELR 148 (9th Cir. 2017). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016). The IDEA requires school districts to provide transportation “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted); accord P. v. West Hartford Bd. of Educ., 885 F.3d 735, 741 (2d Cir 2018)(related services include necessary transportation) citing 20 U.S.C. § 1401(26)(A) and Bd. of Educ. v. Rowley, 458 U.S. 176, 188 (1982); see also 34 C.F.R. §300.34. Additionally, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." NYS Educ. Law §4401[1](emphasis added); §4402[4][a]; 8 N.Y.C.R.R. §200.1[ww]); NYC Chancellor’s Regulation A-801(2)(I)(A) (“State Education Law mandates that the City School District provide transportation for special education children residing in New York City to and from the school they legally attend”).
504
Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. §104.33(a). Under 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. §104.33(b). In examining whether a district has failed to provide a FAPE under 504, the office of civil rights (“OCR”) considers whether: 1) the district evaluated the student per 504 requirements; 2) the student's needs were determined on an individual basis; and 3) the district provided related aids and services necessary to meet the student's individual needs. Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012).
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Parents have the burden of proof under 504. Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990).
Relief
Tuition Reimbursement
A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (prongs) constitute the Burlington/Carter test. A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Carter, 510 U.S. at 16 (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”). Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed themself of need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Moreover, unreasonable actions on the part of the student’s parents may make it appropriate to reduce an equitable award. See Application of a Student with a Disability, Appeal No. 23- 093. While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, direct payment need not be conditioned on the parent’s inability to pay and hearing officers have broad discretion to grant appropriate relief, including direct payment. Cohen v. NYC Dep’t of Educ., 2023 U.S. Dist. LEXIS 171815 (S.D.N.Y. 9/26/23); Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 3/14/23) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 9/23/13) and Mr. & Mrs. A. ex rel. D.A. v. N.Y.C. Dep’t of Educ., 769 F. Supp. 2d at 428; see also Erde ex rel. J.E. v. Banks, 2022 U.S. Dist. LEXIS 232797 (S.D.N.Y. 12/28/22).
IEEs
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR §200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415 (b)(1); 34 C.F.R. §300.502(b); 8 NYCRR §200.5(g)(1); D.S. v. Trumbull Board of Education, 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). A parent may request an IEE if the district did not conduct a sufficiently comprehensive evaluation or failed to test the student in an area of need. Trumbull, 975 F.3d at 165; Letter to Baus, 65 IDELR 81 (OSEP 2015); Letter to Carroll, 68 IDELR 279 (OSEP 2016).
A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. 34 C.F.R. §300.502(b)(5). A parent must disagree with a district evaluation as of the time it was conducted, and subsequent changes in circumstances do not support a disagreement with an evaluation. Trumbull, 975 F.3d at 171, citing N.D.S. by and Through de Campos Salles v. Acad. for Sci. and Agric. Charter Sch., 2018 WL 6201725, at *2 (D. Minn. Nov. 28, 2018)(["'Informing a school that, subsequent to an evaluation, a child's condition has changed is not the same thing as disagreeing with the evaluation'"). Under those circumstances, the appropriate course of action would be more frequent evaluations (and the parents are entitled to request one per year) not an IEE at public expense. Application of a Student with a Disability, Appeal No. 23-018. There is conflicting case law regarding whether it is appropriate for the parent to first request an IEE in a DPC. Past SRO decisions have held that a parent may request a district-funded IEE in a due process complaint notice in the first instance. See Application of a Student with a Disability, Appeal No. 19-094. However, more recent cases have held that “this is not the process contemplated by the IDEA and its implementing regulations.” Application of the Board of Educ, Appeal No. 23-034, citing 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); Application of a Student with a Disability, Appeal Nos. 23-096; 23-081; 23-102 (“The process envisions that a district has an opportunity to engage with the parent on the request for an IEE at public expense outside of due process litigation, and if a delay should occur as a result, one of the fact-specific inquiries to be addressed is whether the IEE at public expense should be granted because the district's delay in filing for due process was unnecessary under the circumstances”).
ANALYSIS AND CONCLUSIONS OF LAW
2022-23 School Year
Prong 1
The DOE has the burdens of production and persuasion as to the provision of a FAPE under the IDEA and I find that they have not met their burden. Although I find that the Parent’s claims regarding the substantive appropriateness of the 6/3/22 IEP have been abandoned, their allegation that no school location was offered to implement the student’s IEP remains. The district has not disputed this allegation or provided evidence or witnesses to contradict it. The failure to timely offer a placement to implement the student’s IEP was a procedural violation that significantly impeded the Parent’s ability to participate in the decision-making process regarding the provision of a FAPE. Accordingly, I find that the DOE failed to offer the student a FAPE for the 2022-23 school year. If the claims regarding the substantive appropriateness of the IEP had not been abandoned, the District would not have met its burden on that either. Nonetheless, I do not find that the program offered was objectively inappropriate. I see no basis in the record for the CSE to know that the student had issues with remote learning caused during the pandemic, such that they should have considered compensatory education on that basis. The Neuropsychological IEE did not yet exist, so they could not have considered it or its recommendations. I find that the student’s present levels of performance and needs were adequately described in the IEP. I find no basis in the record for the CSE to have known that activities of daily living or depression were issues that needed to be addressed. I find that the IEP did address the student’s need for 1:1 and small group support. Furthermore, I find that, despite Parent’s assertion to the contrary, the student had made significant progress in his previous public-school program and had advanced four Fountas and Pinnell levels in reading (which is significantly more progress than the student has made in his time at Private School, despite their specialized reading remediation) in only a matter of months. Based on that progress and the ICT recommendation of the student’s SETSS teacher, I do not find that the recommendation for an ICT class was inappropriate. However, the one place where the program may have been lacking was the decision to eliminate the student’s SETSS, despite the fact that his reading progress appeared to be attributable to those sessions. On the face of the IEP, it does not appear that the CSE even considered an ICT class with SETSS. Without the testimony of a DOE witness to provide a cogent and responsive explanation for that decision, they could not sustain their burden under Prong 1 regarding the substantive appropriateness of the IEP.
Prong 2
I find that Parent has met their burden in proving that Private School offered an educational program which met the student’s needs under Prong II of the Burlington/Carter standard for the 2022-23 school year. Here, the weight of the evidence established that the student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. The Private School program was consistent with the recommendations of the Neuropsychological IEE. Furthermore, the DOE has made no arguments challenging the appropriateness of the unilateral placement. I am, however, concerned over the lack of objective evidence of progress in the record, the inconsistent information about the student’s progress with emotional regulation at home vs. at school, and the fact that the student’s reading progress (according to standardized assessments) appears to have stagnated since June of 2022. I also am concerned that Private School is not the student’s least restrictive learning environment, but LRE requirements for unilateral placements are not as strict as those for public school. Despite these concerns, based on all the evidence in the record, it does appear that the Private School program was individualized to meet the student’s needs, and that he did make some (if inconsistent) progress in the program. Moreover, I find that the student’s program was offered by appropriately qualified individuals. Accordingly, Parent has met their Prong 2 burden for the 2022-23 school year.
Prong 3
The equities here favor the Parent. Parent has been fully cooperative with the DOE. They participated in the CSE meeting and provided the necessary Ten-Day Notice. The record contains evidence of the Parent’s financial obligation to pay the private school tuition in full. Here, the DOE has not alleged that the Private School tuition is excessive or that the enrollment contract was fraudulent in any way. Furthermore, the DOE has made no allegations of any actions on the part of the Parent that would weigh against them in terms of the equities. Accordingly, equity demands that the DOE fund the student’s Private School tuition for the 2022-23 school year, in the form of reimbursement in the amount of $2,500 and direct payment of the balance of $83,750.
2023-24 School Year
Prong 1
The DOE has the burdens of production and persuasion as to the provision of a FAPE under the IDEA and I find that they have not met that burden. Parent alleges that no IEP was developed, or school location offered for the 2023-24 school year. The district has not disputed this allegation or provided evidence or witnesses to contradict it. Accordingly, there is no question that the failure to develop an appropriate IEP and timely offer a placement to implement it denied the student a FAPE for the 2023-24 school year.
Prong 2
I find that Parent has met their burden in proving that the Private School offers an educational program which meets the student’s needs under Prong II of the Burlington/Carter standard for the current school year. Here, the weight of the evidence establishes that the student’s individual special education needs are addressed by the Private School and that the instruction offered is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. The program provided by the Private School is consistent with the recommendations of the Neuropsychological IEE. Furthermore, the DOE has made no argument challenging the appropriateness of the unilateral placement. While it would be better to have more objective evidence of progress in the record, it is still early in the school year, so formal grades and progress reports have not yet been issued. I am concerned that Private School is not the student’s least restrictive learning environment, but, again, the LRE requirements for unilateral placements are not as strict as those for public school. Based on all the evidence in the record, it appears that the Private School program was individualized to meet the student’s needs and that he has made some (if vague) progress in the program. Moreover, I find that the student’s program is being offered by appropriately qualified individuals. Accordingly, Parent has met their Prong 2 burden for the 2023-24 school year.
Prong 3
The equities here favor the Parent. Parent has been fully cooperative with the DOE. Although there was no CSE meeting for them to attend, they did provide the necessary Ten-Day Notice. The record contains evidence of the Parent’s financial obligation to pay the private school tuition in full. Here, the DOE has not alleged that the Private School tuition is excessive or that the enrollment contract was fraudulent in any way. Furthermore, the DOE has made no allegations of any actions on the part of the parents that would weigh against them in terms of the equities. Accordingly, equity demands that the DOE directly fund the student’s Private School tuition for the entire 2023-24 school year. Additionally, the student is entitled to transportation to and from the Private School for the duration of the school year.
IEEs:
I do not find that Parent is entitled to the requested IEEs at public expense. A parent is only entitled to one IEE at public expense per DOE evaluation, [50] and they already requested and were granted a neuropsychological IEE at public expense. Furthermore, at the time they first disagreed with the evaluation, the basis of the disagreement was a lack of diagnoses in the 2021 Evaluation, which is why they only requested a neuropsychological IEE at that time. There was no indication in Parent’s March 2022 letter that they disagreed with the lack of AT or SL evaluations or disagreed with the OT evaluation that was already done. Although the law allows Parent to disagree with the 2021 Evaluation on the ground that it was insufficiently comprehensive, that disagreement must be based on their belief as of the time that it was created,[51] and changes in circumstances do not support disagreement on different grounds at a later date. Under these circumstances, the appropriate course of action would be to request that the DOE perform a re-evaluation, including the assessments now believed to be lacking.[52] Here, there is no indication that a DOE re-evaluation has been done in the last year, so that is the more appropriate remedy. Furthermore, there is no indication in the record that Parent requested these IEEs prior to the filing of this DPC, which is not the process contemplated by the IDEA. [53] So, even if I were to find that Parent was otherwise entitled to additional IEEs, I would deny them on that basis. For all these reasons, I find that Parent is not entitled to the requested IEEs at public expense. However, the record supports the need for these evaluations (with the exception of the SL evaluation, as described previously) and a re-evaluation has not been done in approximately two years. So, I find that the DOE should comprehensively re-evaluate the student, including, at minimum, a social history, classroom observation, OT evaluation, AT evaluation, and review of teacher feedback and any other evaluative information (including the Neuropsychological IEE) on the student. I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
- ORDERED that Parent’s claim for tuition reimbursement for the student's unilateral placement at the Private School is GRANTED for the 2022-23 10-month school year as follows: The New York City Department of Education shall reimburse the Parent $2,500, upon submission of proof of payment, and issue direct payment to the Private School for the balance of the student’s attendance there in the amount of $83,750; it is further
- ORDERED that Parent’s claim for tuition reimbursement for the student's unilateral placement at the Private School is GRANTED for the 2023-24 10-month school year as follows: The New York City Department of Education shall issue direct payment to the Private School for the student’s attendance there, upon receipt of corresponding invoices and attendance records, in an amount not to exceed $92,250; it is further
- ORDERED that the DOE shall provide the student transportation to and from the Private School for his attendance there for the remainder of the 2023-24 school year; it is further
- ORDERED that the New York City Department of Education shall conduct a re-evaluation of the student consisting of, at minimum, a social history, classroom observation, OT evaluation, AT evaluation, review of teacher feedback, and review of any other evaluative information (including the Neuropsychological IEE) on the student; and it is further
- ORDERED that the New York City Department of Education’s Committee on Special Education shall then, upon completion of the above-mentioned reports, convene a review meeting to consider the results of all existing evaluative material, and develop an appropriate IEP with an appropriate program and services in light of the results therein for the 2024-25 school year.
SO ORDERED.
DATED: November 06, 2023
Leah Martin, Esq. (Signed Electronically)_
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| 2 | IEP | 11/5/21 | 28 |
| 3 | PWN | 11/15/21 | 11 |
| 4 | IEP | 6/3/22 | 22 |
| 5 | PWN | 6/16/22 | 9 |
| 6 | Social History Evaluation | 9/20/21 | 16 |
| 7 | Psychoeducational Evaluation | 10/14/21 | 15 |
| 8 | Classroom Observation | various | 1 |
| 9 | Occupational Therapy Evaluation | 11/5/21 | 8 |
| 10 | Assessment Planning | Various | 1 |
| 11 | Physical Examination | 4/16/21 | 4 |
PARENT EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| A | DPC | 8/22/23 | 15 |
| B | Ten Day Notice | 8/21/23 | 2 |
| C | Ten Day Notice | 8/17/22 | 2 |
| D | Neuropsychological Evaluation | 12/10/22 | 36 |
| E | Enrollment Contract | 5/27/22 | 23 |
| F | Tuition Affidavit | 10/23/23 | 1 |
| G | Attendance Report | 6/20/23 | 1 |
| H | Attendance Report | 10/2/23 | 1 |
| I | IEE Request Letter | 3/30/22 | 3 |
| J | Private School General Program Description | 2023-24 | 3 |
| K | Resume – 22/23 Teacher | Undated | 1 |
| L | Class Schedule | Fall 2023 | 1 |
| M | Class Schedule | 2022-23 | 1 |
| N | Enrollment Contract | 3/22/23 | 25 |
| O | Academic Progress Report | Spring 2023 | 3 |
| P | Therapy Team Report | undated | 7 |
| Q | Tuition Affidavit | 10/23/23 | 1 |
IHO’S EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| i. | Due Process Response | 8/29/23 | 3 |
Footnotes
[1] Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE Exhibits, and lower-case roman numeral designations for Impartial Hearing Officer Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] The DOE’s proposed exhibits 1 and 12 were not admitted because they were duplicates of Parent Exhibits. (Tr. 19-20). The DOE’s proposed exhibits 2b, 4b, and 7b were consolidated into the main exhibits of the same number. (Tr. 18-19). The hearing transcript will be cited as (Tr. ) followed by the page number within the transcript. The transcript from October 27 had not yet been received at the time this decision was issued, so references to the transcript from that day will simply be noted as (Tr. ) without any corresponding page number.
[4] She has a master’s degree, is an Orton-Gillingham certified literacy specialist, and is New York State certified to teach elementary education (grades one through six). (Ex. K-1; Tr. ). She was one of the student’s primary teachers for all his core subjects during the 2022-23 school year. (Tr. ).
[5] She is a speech pathologist and supervises the student’s speech, OT, and counseling providers. (Tr. ). She was also part of the student’s intake team at Private School. (Tr. ).
[6] She has a master’s degree in Education, a Master of Science degree in Childhood Education, and is New York State certified to teach childhood education. (Tr. ). She is one of the student’s co-teachers for ELA, math, social studies, and science this school year at Private School. (Tr. ).
[7] The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab- Act-504-delegation-Signed.pdf.
[8] The DPC also includes reference to 42 U.S.C. §1983, but since I lack jurisdiction over any such claim it will not be discussed herein.
[9] Parent was present at this meeting. (Ex. 4-21).
[10] This provider was providing special education teacher support services (“SETSS”). (Ex. A-5).
[11] It appears that Parent has conflated what was considered in development of the 6/3/22 IEP (Ex. 4-1) with what was included in the 2021 Evaluation.
[12] The reports from the student’s teacher and SETSS provider are not in evidence. The psychoeducational evaluation is in evidence as Exhibit 7 and the OT evaluation is in evidence as Exhibit 9. Although Exhibit 6 is labelled as the Social History Evaluation, it appears to actually be a packet of forms that were sent to the Parent prior to the 2021 Evaluation. (Ex. 6). Although page 6-15 is entitled “Social History Evaluation” it does not contain any substantive information and instead indicates “See Attached Report,” but no report was attached. (Ex. 6-15). Similarly, although Exhibit 8 is labelled as the Classroom Observation, the findings appear to have been written in an attachment that is not included in the record. (Ex. 8-1).
[13] Although the DOE’s agreement to fund this IEE was delayed, it was eventually funded. (PHC Transcript; Tr. ).
[14] The 6/3/22 IEP also included an AT goal to “use assistive technology such as a tablet/computer with speech-text and/or word prediction features to produce writing and edit for content using a checklist with specified criteria within the allotted time.” (Ex. 4-12).
[15] Although the 2021 OT evaluation also recommended a comprehensive vision therapy evaluation, Parent has not requested an IEE for that, and it appears that vision therapy is being done privately (Ex. 2-10; 4-4; A-4). Since this evaluation was not raised in the DPC, it will not be discussed further herein.
[16] While the Neuropsychological IEE recommended an SL Evaluation at the end “to address oral discourse and prosody” (Ex. D-29), there do not appear to be any speech-language concerns mentioned in the body of the evaluation report, nor is there any explanation given as to why the student’s oral discourse or prosody were of note. Accordingly, the basis for that recommendation is unclear from the record.
[17] Since none of the 2021 assessments, apart from the psychoeducational, were reviewed in connection to the 6/3/22 IEP, and in-depth analysis of those documents is not necessary for determination of Parent’s IEE request, they will not be discussed in detail here. Similarly, as the 11/5/21 IEP is not at issue in this case, it will not be discussed in detail here either.
[18] It states only that “General Education with [SETSS] was considered, but at this time, the team feels as though he needs full time support from a special education teacher in an [ICT] classroom along with [OT] and counseling as related services.” (Ex. 4-20; 5-2).
[19] The Neuropsychological IEE was not completed until after the 6/3/22 IEP, so it will not be considered when evaluating the appropriateness of the 6/3/22 IEP.
[20] On the report, the evaluator’s name is followed by the acronyms Ph.D., ABPdN, ABSNP (Ex. D-30), but there is no evidence in the record as to what the additional acronyms mean.
[21] Parents are joint and severally liable. (Ex. E-16).
[22] There is no 2022-23 program description in evidence, nor was there testimony that the description remained the same for both school years.
[23] The program description lists a number of available methodologies and supports, but they are not included here unless there is specific evidence in the record that they are used for this student.
[24] The record is silent as to whether the schedule for the rest of that school year was the same or similar.
[25] This appears to be a group therapy class with lessons “related to mindfulness, emotional regulation, and adaptive coping strategies” incorporating the Zones of Regulation, Social Thinking, and Mindset Matters curricula. (Ex. P-2-3).
[26] This is art class. (Tr. ).
[27] It is unclear from the record what this is.
[28] It is unclear from the record what this is.
[29] It is unclear from the record what this is.
[30] 22/23 Teacher testified that the teachers worked individually with the student for the majority of his writing and math classes. (Tr. ).
[31] This was recommended by the student’s vision specialist and involves taking a break every twenty minutes to look at something twenty feet away for twenty seconds. (Ex. P-2; Tr. ).
[32] The report noted fewer instances of big tantrums, but that they did still occur. (Ex. P-2). It was also noted that he was more receptive to adult help and was able to transition back to class faster after a tantrum. (Ex. P-2).
[33] 23/24 Teacher testified that all students at Private School participate in this class, as it is part of their general curriculum. (Tr. ).
[34] It is unclear from the record when exactly this report was issued.
[35] Private School uses the same grading system as the DOE. (Tr. ).
[36] Parents are joint and severally liable. (Ex. N-17).
[37] Parent reports financial instability due to substantial debt from a failed business. (Tr. 61).
[38] The record is silent as to whether the schedule will be the same or similar for the Spring semester.
[39] It is unclear from the record what this is.
[40] This class uses the Dimensions Math curriculum, which is based on Singapore Math. (Tr. ).
[41] This appears to be a group therapy class with lessons “related to mindfulness, emotional regulation, and adaptive coping strategies” incorporating the Zones of Regulation, Social Thinking, and Mindset Matters curricula. (Ex. P-2-3).
[42] This is art class. (Tr. ).
[43] It is unclear from the record what this is.
[44] It is unclear from the record what this is.
[45] It is unclear from the record what this is.
[46] It is unclear from the record what this is.
[47] The groups are mostly based on ability for each particular topic. (Tr. ).
[48] The speech class is a general part of the Private School program. (Tr. ).
[49] I found all the hearing witnesses to be credible, except where otherwise noted in the facts section above.
[50] 34 C.F.R. §300.502 (b)(5).
[51] Trumbull, 975 F.3d at 171.
[52] Application of a Student with a Disability, Appeal No. 23-018.
[53] Application of the Board of Educ, Appeal No. 23-034, citing 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); Application of a Student with a Disability, Appeal Nos. 23-096; 23-081; 23-102.